This clip is a few weeks old, but I encountered in when the TA showed it to the American Government discussion section I was sitting in on. I was about to explain the reality behind “job killing” health care, but he mentioned Jon Stewart already had me on it. I can be pretty entertaining, but I’m no Jon Stewart. Here’s the clip:

I also like that it shows just how absolutely inane Fox News is. This is not Glenn Beck on some rant, this is a supposed news show where the host insists on moving away from the real issue back to the trivial and superficial one. One of the students asked where you’re supposed to get the real information. I mentioned that I heard the explanation myself on NPR a few weeks ago. Albeit in less entertaining form.

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I’ve been meaning all week to link to these two great posts from legal scholars (law professors, I presume) that really explain just what was so wrong with Judge Vinson’s decision on health care. Better late than never. First Orin Kerr:

To understand Vinson’s argument, you need to realize that conservatives and libertarians have been complaining for many decades that Commerce Clause doctrine has left Congress essentially unlimited power. Between Wickard v. Filburn and Gonzales v. Raich, conservatives and libertarians have complained, the federal government can justify pretty much anything. Remember how Justice Thomas began his dissent in Raich, with emphasis added:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–-and the Federal Government is no longer one of limited and enumerated powers.…

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Today’s decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century – since the New Deal – and, actually, dating back to Chief Justice John Marshall’s expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson’s recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson’s decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.

I would love it if news stories covering this decision had included some legal scholars to be quite clear on just how mistaken Judge Vinson was in many ways, but wouldn’t want to be “biased” I guess.

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Nate Silver does a very thorough analysis of all the 2012 Republican contenders (Iowa Caucus is only a year away) and puts it all in a cool graph to boot!

Well worth a read. The size of the circles represent the chances of winning the nomination based on current trading prices at InTrade. I’m not sure if there’s a way to make money off the fact that people are willing to give Michelle Bachman and Newt Gingrich (and Donald Trump?!) among others, non-zero chances of winning, but if there are, you might want to get on that. Actually, the most money to be made might be off of Daniels or Huntsman, who I’m thinking might actually make the better presidents out of this group but are clearly to liberal to ever win over the Republican primary electorate. In fact, my thinking has been for a while that anybody sane and centrist enough to beat Obama– in an election not-entirely determined by the state of the economy (i.e., if its bad enough, even Michelle Bachman could beat him– though we might be living in caves if it’s that bad)– is very likely to sane and centrist to win the Republican nomination. A number of bloggers have also been noting how unusual it is that not a single Republican has actually officially declared just a year out from Iowa. I do think there may be something to the fact that the smartest of the potential future Republican presidents realize their best chance is in 2016.

Oh, actually there is a really easy way to make money off this– buy contracts on Romney, Huckabee, Palin, Pawlenty, and Thune (the only one’s I see having any actual chance). The total will be well under a dollar, but the likelihood of one of this group being the nominee is pretty damn close to 100 in my opinion. Time to set up my intrade account, I guess.

UPDATE: I did just go to Intrade. Worth mentioning, that the US anti-gambling rules are really annoying. You cannot even set up an Intrade account via credit card– need to send a check to Ireland.

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I was listening to the Slate political gabfest today and Slate Editor (and some-time fan of this blog) read an amazing quote from the memoirs of Ulysses S. Grant. I was hoping they would post the quote on the webpage, but there’s no page up yet for this week’s gabfest. Anyway, went to The Google and “The Reluctant Blogger” was apparently already on top of this quote. Among the better eviscerations of the doctrine of originalism I’ve seen. You go, Ulysses!

The framers were wise in their generation and wanted to do the very best possible to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies. At the time of the framing of our constitution the only physical forces that had been subdued and made to serve man and his labor, were the currents in the streams and in the air we breathe. Rude machinery, propelled by water power, had been invented, sails to propel ships upon the waters had been set to catch the passing breeze — but the application of steam to propel vessels against both wind and current, and the machinery to do all manner of work had not been thought of. The instantaneous transmission of messages around the world by means of electricity would probably at that day have been attributed to witchcraft or a league with the Devil. Immaterial circumstances have changed as greatly as material ones. We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.